America will not be destroyed from the outside. If we falter and lose our freedom, it will be because we destroyed ourselves.
—ABRAHAM LINCOLN
IN THE MAY 17, 1954, RULING ON BROWN V. BOARD OF Education, the Supreme Court determined that separate public schools for black and white students was unconstitutional. The ruling overturned the 1896 Supreme Court case of Plessy v. Ferguson, which allowed the discriminatory practice. The court in 1954 was led by Chief Justice Earl Warren, the former governor of California who, ironically, had been instrumental in implementing the wartime internment of citizens of Japanese ancestry only a decade before. Although the public was deeply divided on school segregation at the time, the court’s job was to interpret the equal protection clause of the Fourteenth Amendment. It was about the rule of law. The court ruled nine to zero that “separate educational facilities are inherently unequal” and thus unconstitutional.
Enforcement would be wholly another matter. Was the United States to be a country where the executive branch would enforce the orders of the courts, or would Southern governors be allowed to ignore the courts? The United States Supreme Court has never had an army, and its tiny police force of US marshals only protects the justices. President Eisenhower would have to enforce the court’s order against strong opposition in Congress.
The opposition in Congress and from elected state officials, almost all Democrats, was fierce. In Virginia, Senator Harry Byrd organized a movement that closed schools rather than integrated them.
In Texas, John Shepperd, the attorney general, threw up legal challenges to prevent the implementation of school desegregation. In Dallas, the schools integrated one class level at a time per year. White Texans dragged their feet as long as they could, and then they sent their children to new whites-only private schools. In Arkansas, Governor Orval Faubus called the state’s National Guard to prevent black students from entering Little Rock Central High School.
In Florida, the state legislature passed a resolution declaring the Brown v. Board decision null and void. But Florida governor LeRoy Collins, who had himself protested against the decision, nevertheless refused to sign the resolution into law. He argued that the overturning of Brown should only be done legally.
Governor Collins, a segregationist, at least recognized the importance of the rule of law. Unlike some Southern leaders, he was not willing to send the South down the path it had chosen in 1861 to confront the rule of law—in that case the election of Abraham Lincoln—with violence.
President Eisenhower was ready. He had been careful in his public comments on the merits of the case, although his Justice Department had submitted briefs supporting the plaintiffs. Eisenhower understood his role, which was not to decide the case but to enforce the court order. He would have to support the ruling, and subsequent similar rulings, throughout the country, and especially throughout the South, where federal district judges would have to give the orders to desegregate specific school districts. In Arkansas, Eisenhower answered Faubus’s challenge by sending members of the 101st Airborne Division from Fort Campbell, Kentucky, to Arkansas. He also federalized the Arkansas National Guard.
If Arkansas wanted to go the route that the South had gone in 1861, Eisenhower, who had been one of the most famed generals in American history, was ready. Governor Faubus backed down.
Mississippi continued to practice school segregation, and no one challenged the practice for nine years for fear of violence by the Ku Klux Klan and the White Citizens’ Council. In 1963, Medgar Evers sued to desegregate the Jackson, Mississippi, schools, and he was murdered by White Citizens’ Council member Byron De La Beckwith. Many knew De La Beckwith did it, but two trials ended in hung juries. Thirty-one years after the murder, De La Beckwith was finally convicted.
In 1963, when two black students attempted to enter the University of Alabama, Governor George Wallace stood in front of the door of Foster Auditorium to prevent them from entering. He capitulated only when President John Kennedy intervened, and General Henry Graham of the Alabama National Guard ordered him to step aside.
What Eisenhower and Kennedy did was crucially important to the protection of the rule of law. When the Supreme Court decides whether a law is constitutional, that ruling needs to be enforced on both the federal and state levels, and it is the job of the president to enforce it.
It took years to eliminate de jure segregation in the South, and de facto segregation throughout the country remains because school district boundaries are often drawn along segregated neighborhood lines. Housing segregation is instigated by real estate agents, developers, and landlords, including in the 1960s and 1970s in Queens, New York, by Fred and Donald Trump. Bringing these private actors to heel would take additional legislation and decades of investigations and litigation, including the Nixon administration’s civil rights litigation against the Trumps.
Many Democrats from other parts of the country and some from the South, including Lyndon Johnson, did not side with the powerful segregationists within Democratic Party ranks. The Democratic Party was soon made to pay an enormous political price for this decision, when alienated white Southern Democrats sought a new political home. Ironically they would find it within the Republican Party that through the 1960s had a comparatively (“comparatively” is the key word here) progressive stand on equality for African Americans from Lincoln through Theodore Roosevelt and Eisenhower.
In 1952 and 1956, many African Americans backed the Republican Party. President Eisenhower gave them good reason. Upon the Supreme Court ruling in the Brown v. Board of Education decision, Eisenhower ordered the Washington, DC, public schools to be desegregated. In 1957 and 1959, Eisenhower proposed strong civil rights bills to enforce the long-neglected Fifteenth Amendment and give Southern blacks the right to vote. However, Southern Democrats in the Senate filibustered the bills and watered down their strongest provisions.
Kennedy was the first Democratic president after Brown v. Board. He appointed his brother Robert Kennedy as attorney general (this was before Congress passed an anti-nepotism statute in 1967) and put him in charge of enforcing court-ordered school desegregation. Segregationists through much of the South hated Robert Kennedy.
The president faced a Congress led by segregationist committee heads from his own Democratic Party.
In May 1961, Robert Kennedy was forced to act when a Freedom Rider bus was set on fire in Birmingham. He sent aide John Seigenthaler to Birmingham, where a rioter bashed him over the head with a pipe and cracked his skull, knocking him unconscious.
Eight days later, Robert Kennedy asked the Interstate Commerce Commission to end segregation on interstate buses. The rules ending this type of segregation took effect in November.
In the fall of 1962, Mississippi governor Ross Barnett refused to comply with the Supreme Court ruling demanding integration at the University of Mississippi. In response, President Kennedy addressed the nation on September 30, 1962, and announced that he’d federalized the state National Guard. In April 1963, civil rights activists started a campaign in Birmingham that included boycotts, lunch counter sit-ins, and a protest at city hall. Birmingham police commissioner Bull Connor turned high-pressure hoses and police dogs on the protesters, including children. The violence, captured on national television, was viewed across the country.
By June President Kennedy was prepared to take a stand.
June 11, 1963 was one of the most notable days of the early civil rights movement. That morning, Alabama governor George Wallace stood at the schoolhouse door in a futile attempt to stop the integration of the University of Alabama.
That evening, Boston’s NAACP leaders had their first confrontation with Louisa Day Hicks, the chairwoman of the Boston School Committee, in the battle over segregated schools.
And just after midnight, a white segregationist in Jackson, Mississippi, murdered civil rights leader Medgar Evers.
Another event marked that notable day. President Kennedy surprised everyone when he asked for airtime at 8 PM from the three major TV networks.
He announced that the National Guard had helped enroll two black students at the University of Alabama. He then for the first time spoke of civil rights as a “moral issue.” He asked every American, “regardless of where he lives, to stop and examine his conscience.” America “for all its hopes and all its boasts, will not be fully free until all its citizens are free.”
Kennedy said to the nation, “If an American, because his skin is dark, cannot eat lunch at a restaurant open to the public, if he cannot send his children to the best public schools available, if he cannot vote for the public officials who represent him, if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place? Who among us would be content with the counsels of patience and delay?”
Toward the end of the speech Kennedy addressed white Americans, many of whom knew little of the struggle of African Americans for civil rights and who had no idea that a political and cultural revolution was sweeping the land. He invited all Americans to actively support change.
“A great change is at hand,” he said, “and our task, our obligation, is to make that revolution, that change, peaceful and constructive for all.”
Kennedy announced he would introduce sweeping civil rights legislation and push for faster school desegregation, which had been advancing with glacial slowness for nearly a decade.
Kennedy did as he promised, submitting a strong civil rights bill to Congress. A bombing of a black church in Birmingham, Alabama, that killed four young African American children, added to the pressures to pass such a bill. He pushed for its passage up until November 22, 1963, when he was murdered in Dallas.
President Lyndon Johnson then used his powers of persuasion in Congress and his credibility as a Southerner from Texas the following year to push through this bill, which he signed into law on July 2, 1964 as the Civil Rights Act of 1964.
The act provided, among other things, that it was illegal for private businesses and governments to discriminate on the basis of race in public accommodations, including buses, restaurants, and hotels. This was a dramatic change in the federal government’s assertion of power not only over the states but also over individuals and businesses engaged in interstate commerce, who had previously been subjected only to regulation by state governments controlled by segregationist politicians.
The bill passed the House by a margin of 290 to 130. Sixty-one percent of Democrats supported the bill (152 yes and 96 no), and 80 percent of Republicans supported it (138 yes and 34 no). After the longest filibuster in Senate history, the Senate passed the bill 73 to 27. Sixty-nine percent of Senate Democrats supported the bill (46 yes, 21 no), and 82 percent of Republicans supported it (27 yes, 6 no). But in both the House and Senate, the overwhelming majority of members from the South (almost all Democrats) voted against the bill.
President Johnson commented to his chief of staff, Bill Moyers, “I think we just gave the South to the Republicans for your lifetime and mine.”
He was right.
LBJ’s next move, after considerable pressure was put on him by Martin Luther King, was to enact a law to prevent states from disenfranchising African Americans at the ballot box.
Enforcement of the post–Civil War Fifteenth Amendment, which granted male freed slaves the right to vote, would be a pervasive problem from its adoption until the present day. To facilitate enforcement, Congress also passed the Enforcement Act of 1870, giving the federal government the ability to protect black voting rights by arresting and indicting conspirators like the Ku Klux Klan. But a later Supreme Court decision declared that law unconstitutional.
Without the protection of the Enforcement Act of 1870, Southern states made sure that most blacks didn’t vote. In 1874 President Rutherford B. Hayes received the support of three Southern states in exchange for his pledge to refuse to enforce federal civil rights protections. The responsibility of protecting voting rights fell solely on state governments. Federal troops withdrew from the South in 1877, and states passed Jim Crow laws. The eleven Southern states, which were predominantly Democratic, passed poll taxes and literary tests, refused to count black votes, and allowed violence against African Americans who tried to vote.
In 1932 the Democratic Party of Texas instituted a rule that only whites could vote in the primaries. Dr. L. A. Nixon of El Paso, a black man who was denied the right to vote, sued. In Nixon v. Condon, the Supreme Court ruled in 1932 that whites-only voting was unconstitutional. In Grovey v. Townsend, however, the court in 1935 upheld a reworking of the same essential rule in which only the Texas Democratic Party (which called itself a “private organization”) discriminated against black voters. Later, in Smith v. Allwright (1944), the court ruled that primaries were an essential part of the electoral process, and Grovey was overruled.
The Texas Democratic Party responded by barring blacks from the party nominating conventions and other measures.
Whites-only primaries continued.
For years after the end of the Civil War, Southern blacks also were kept from voting by the use of the poll tax, whereby citizens in some states had to pay a fee to vote in a federal election. It was a fee most blacks couldn’t afford.
In 1964, the Twenty-Fourth Amendment to the Constitution was ratified, banning poll taxes, but only in federal elections. The amendment provided that:
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
In the case of Harper v. Virginia Board of Elections, the Supreme Court in 1966 declared the poll tax in state elections also to be unconstitutional.
Annie Harper, a Virginia resident, could not afford the $1.50 poll tax, and she sued. Harper argued the tax violated her rights under the equal protection clause of the Fourteenth Amendment.
In a two-month period following the Harper decision, federal courts declared as unconstitutional poll taxes in Texas, Alabama, Virginia, and Mississippi.
In 1965 came the Voting Rights Act. This legislation was designed to provide for African Americans the right to vote already guaranteed to them in the Fifteenth Amendment, which had not been enforced by Congress for almost a century.
The express wording of the heretofore unenforced Fifteenth Amendment was clear:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The drafters knew that Section 1 was meaningless unless Congress actually used Section 2 to pass a law to enforce voting rights. With the exception of a few temporary measures taken during Reconstruction, Congress had done hardly anything to enforce Section 1. Segregationist politicians had used methods like poll taxes, literacy tests, and intimidation to keep African Americans from the polls. By 1965, finally, the president and Congress realized it was time for this to change. A rule of law set forth in the Constitution was meaningless unless it was enforced.
The Voting Rights Act of 1965 prohibited state and local governments from imposing any law that would discriminate on the basis of race in national and state elections. The federal government was given oversight powers to enforce the act in specific states (Alabama, Georgia, Louisiana. Mississippi, South Carolina, and Virginia) where the right to vote had been denied. In future years, other states such as Alaska, Arizona, and Texas were added.
On August 6, 1965, with civil rights activists Martin Luther King, Rosa Parks, and John Lewis in attendance, President Johnson signed the bill into law.
The political ramifications of the Civil Rights Act and the Voting Rights Act were swift. When Barry Goldwater ran for president against Lyndon Johnson in 1964, Goldwater boasted that he was one of the few Republicans (only six) in the Senate who had voted against the Civil Rights Act. He was one of the first Republicans to say that such an act violated states’ rights and that people should be able to do business (or not) with whomever they chose.
Though Lyndon Johnson won the 1964 election in a landslide, voters in five Southern states fled the Democrats for the Republican Party. The lesson for the Republicans was that even in a terrible election year, appealing to white Southern voters could make inroads on what the Democrats claimed to be their “solid South.”
From 1964 on, Republican strategy would hinge in part on attracting Southern white voters. Richard Nixon’s Southern strategy, implemented by media advisor Roger Ailes, used coded racist messages to attract former Democratic white voters alienated by President Johnson’s civil rights advances.
In 1968, Alabama’s Democratic governor, George Wallace, who intoned “segregation now, segregation tomorrow, segregation forever,” ran for president as an Independent and was able to win in seven Southern states. Wallace gained forty-six electoral votes and almost ten million votes.
Richard Nixon’s 1968 presidential campaign stressed “states’ rights” and “law and order.” When told by campaign aide Kevin Phillips that “Republicans are never going to get more than ten to twenty percent of the Negro vote,” the way to victory for the Republicans seemed obvious. Said Phillips in his book The Emerging Republican Majority, “The more negroes who register as Democrats in the South, the sooner the negrophobe whites will quit the Democrats and become Republicans.”
In the 1960s and ’70s, race was a predominant issue—first school desegregation, then the Civil Rights Act, and the Voting Rights Act. Affirmative action, criminal justice, and a wide range of policies also have had a disparate impact on white and black Americans. Republicans increasingly sided with white Southerners. The price to be paid was a very quick erosion of support for Republicans among African Americans (most of whom had abandoned the GOP by the 1970s), and a more gradual loss of support among more progressive groups of white Americans.
Ironically, after Nixon’s Southern strategy helped win him the election, he worked to end desegregation when he appointed a panel led by Vice President Spiro Agnew and Labor Secretary George Schultz to provide federal aid to desegregate the public schools. Nixon was against busing school children away from their neighborhood schools, but when courts ordered it, he enforced the court orders.
Nixon knew that African Americans needed jobs. Soon after taking office, one of Nixon’s first tasks was to settle the impasse between civil rights leaders and skilled labor unions that were almost exclusively white.
In his first address to Congress in 1970, Nixon announced the Phila-delphia Plan for affirmative action, which imposed goals and timetables for race-based hiring on the city’s unions. The act put in place racial preferences and quotas.
After the plan was implemented in Philadelphia, it was enacted in dozens of cities nationwide. Nixon also pushed affirmative action in federal programs. He managed affirmative action in government procurement contacts and applied them to any institution that received federal funds, including universities. Nixon then issued Executive Order 11478, which called for affirmative action in all government employment. Thousands of African Americans were added to the federal payroll.
Nixon’s record on race issues, however, was mixed. During his first term, he supported a bill that provided federal tax subsidies for the new charter schools that gave white Southerners an alternative to public school integration. The bill didn’t pass, but Republicans advocating for “school choice” gained the sympathies of a generation of Southern white voters.
The Nixon administration—sometimes—enforced fair housing laws, bringing lawsuits against landlords (including Fred and Donald Trump in New York) who refused to rent to African Americans. Nixon, despite all of his flaws, was at least willing sometimes to stand up for the rule of law.
Subsequent administrations—Ford, Carter, Reagan, Bush, Clinton, Bush, and Obama—continued to enforce the landmark civil rights laws of the 1960s with varying degrees of enthusiasm. The Republican administrations from Reagan on generally devoted fewer resources to enforcement and took noticeably more conservative positions on legal issues.
Gerald Ford’s administration continued many Nixon policies. Ford appointed William Coleman as secretary of transportation, only the second African American to serve in a presidential cabinet, and the first appointed by a Republican.
Next came Jimmy Carter, a Southerner with experience standing up to racism and segregation.
When Carter was elected governor of Georgia, during his inaugural address he told his audience, “I say to you quite frankly that the time for racial discrimination is over.” On January 15, 1973, Carter declared Martin Luther King Day a state holiday. Against the advice of some of his closest aides, Carter hung King’s portrait in the state capitol.
In his 1976 presidential campaign, Carter’s high-profile backers included Andrew Young and Barbara Jordan, the first black members of Congress from the South since Reconstruction. At the 1976 Democratic Convention in New York, Jordan gave the keynote speech, Young helped nominate Carter, and Martin Luther King Sr., the father of the deceased martyr, delivered the closing benediction.
Carter appointed the first black division head at the Department of Justice, the first black female cabinet member, and the first black ambassador to the United Nations. Carter named more blacks, Latinos, and women to the federal judiciary than all previous administrations combined.
The Reagan era, however, saw a retrenchment on civil rights.
But it was not framed that way. It was framed as a debate over the rule of law.
First, there was the principle that discrimination against anyone on the basis of race should be illegal. This interpretation of the Fourteenth Amendment and of civil rights laws meant a rejection of the Nixon-Ford policies on affirmative action.
Second, there were the debates over individual liberty (how much power the government should have over the persons and property of individual Americans) and federalism (the division of responsibility and authority between the federal and state governments).
Individual liberty is one of our founding principles. As Thoreau said in his “Civil Disobedience” treatise, “The government that governs best governs least.” Federalism is also one of our founding principles. Many of the founders including the Jeffersonian Democrats preferred a relatively small central government. Decentralized government was believed to be a hallmark of individual liberty, and it still is.
But society also needs some limits on both individual liberty and decentralized government. George Washington’s Federalists believed this. So did the first Republican president Abraham Lincoln.
Another very important principle, embodied in the Fourteenth Amendment, is that the states must provide equal protection under the laws. Brown v. Board of Education was one of several cases in which the federal courts overrode rights of states that had demonstrated that they would discriminate against their African American citizens. Then came the Civil Rights Act of 1964, the Voting Rights Act of 1965, and more.
The Jeffersonian political philosophy of small central government and individual rights can become an attractive way to frame an agenda on race issues with racially neutral terms.
These issues are hotly debated in organizations like the Federalist Society, a group of conservative and libertarian lawyers formed in the early 1980s. Federalism—the question of how much power to give to the states—has been a very legitimate rule of law question since the founding. If, however, the federal government has a stronger approach to civil rights laws than the states (as it did beginning in the 1960s), federalism also can be used to perpetuate race discrimination. Occasionally it is the states that stand up for the rights of racial and ethnic minorities. (Recently, many state and municipal governments have used sanctuary cities and other measures to oppose federal immigration policy.) Nonetheless, since the Civil War, the federal government has been a better champion of African Americans than many of the states, particularly in the South. This raises the question of whether a federalist vision of decentralized government is sometimes just an intellectual veneer on opposition to civil rights laws.
The answer to that question is not always easy. One side says it is only interested in federalism, while the other says that most federalists are promoting race discrimination.
As these two principles clash and the rhetoric heats up, one wonders whether the rhetoric itself is undermining the rule of law.
When Ronald Reagan ran for president, he opened his campaign at the Neshoba County Fair in Mississippi—not far from where three civil rights workers, Andrew Goodman and Mickey Schwerner from New York City, and James Chaney from Meridian, Mississippi—were murdered by white supremacists in June 1964. In his first campaign appearance, Reagan told the crowd, “I believe in states’ rights. I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the Constitution to be given to that federal establishment.”
So far, so good. On the surface, candidate Reagan was espousing the federalist principles of many before him, including Thomas Jefferson. But was there something more to it?
It was odd for Reagan to speak at such a remote area with so few electoral votes, but he was letting Southerners know where he stood on federalism. Was Reagan’s speech also a veiled statement on civil rights laws? Even though he never mentioned the murdered Goodman, Schwerner, and Chaney in his speech, he let white Southerners know that he was squarely in their corner.
In 1980 almost a quarter of all Democrats switched and voted for Reagan. In 1984 Reagan got about two-thirds of the white vote. Ninety percent of blacks voted for his opponent, Walter Mondale.
As president, Reagan signed into law a 1982 extension of the Voting Rights Act that he had earlier opposed, vetoed the Civil Rights Restoration Act (a 1988 law that requires recipients of federal funds to comply with civil rights regulations in all areas, not just the program that receives federal funding—Reagan’s veto was overridden by Congress), and scaled back some of the enforcement work of the Equal Employment Opportunity Commission (EEOC).
When it came to enforcing key civil rights laws, the administration of President George H. W. Bush brought a mixed bag. In his campaign, he told the country to “leave that tired old baggage of bigotry behind.”
In 1990 Bush signed the Civil Rights Act of 1991, which was a watered-down version of an employment discrimination bill that he had vetoed in 1990 because of concerns about affirmative action using hiring quotas.
Bush’s appointments of prominent African Americans included Dr. Louis Sullivan, president of Morehouse School of Medicine, as secretary of Health and Human Services, and Colin Powell as chairman of the Joint Chiefs of Staff.
He also appointed conservative lawyer and judge Clarence Thomas to the Supreme Court to replace liberal lawyer and justice Thurgood Marshall. The Congressional Black Caucus opposed the nomination. Representative Major Owens of New York called Thomas a “monstrous negative role model, a Benedict Arnold.” Putting him on the Supreme Court, said Owens, “would be a gross insult, a slap in the face of all African Americans.” Thomas was confirmed in 1991 even after former employee Anita Hill accused him of sexual harassment when they had worked together at the EEOC.
Thomas has been on the court for twenty-eight years, almost always siding with litigants opposing affirmative action, litigants supporting gerrymandering (as least political gerrymandering that is not overtly racist), and others aligned against positions espoused by African American advocacy groups such as the NAACP.
Bush lost his 1992 reelection try to Arkansas governor Bill Clinton.
Clinton appointed an unprecedented number of African Americans as cabinet secretaries, ambassadors, federal judges, and other administrative positions. He oversaw an agreement to give billions of dollars to black farmers who faced discrimination in the federal government’s farm loan program. He ordered HUD secretary Henry Cisneros to increase the homeownership rate for African Americans. The administration devoted more resources to enforcing civil rights laws than the preceding two Republican administrations, and even more importantly, legal positions interpreting those laws shifted in the direction of more aggressive enforcement. The Clinton administration resisted the notion, increasingly popular among conservative Republicans, that affirmative action programs were unconstitutional.
The next president, George W. Bush, had the most ethnically diverse Republican administration ever. General Colin Powell headed the State Department, and Condoleezza Rice followed. Alphonso Jackson and Rod Paige, both African American, headed the offices of Housing and Urban Development and the Department of Education.
The problem again was that the most conservative elements in the Republican Party had gained ascendency in the House and Senate, including many conservative Southern politicians. The administration’s legal interpretations of the Civil Rights Act of 1964, the Voting Rights Act of 1965, fair housing laws, and other civil rights laws were at least as conservative as those in the Reagan-Bush years.
Democratic candidate Barack Obama in 2008 again mobilized the African American community to demand progress on civil rights. As a candidate he promised to fight employment discrimination, expand hate-crime laws, end racial profiling, and eliminate criminal sentence disparities. He achieved some of these goals, but no new major civil rights legislation. The focus was on enforcing existing laws.
Then came attention to another civil rights issue—police shootings.
On August 9, 2014, in Ferguson, Missouri, a white police officer shot to death college student Michael Brown, who was unarmed. The officer was not indicted. That same year there were police shootings of unarmed black men in Los Angeles, Chicago, New York, Brooklyn, Madison, Tulsa, and many other cities.
On November 22, 2014, a police officer approached Tamir Rice, an African American twelve-year-old who was playing with a toy gun in a Cleveland playground. Police responding to a 911 call shot the boy dead without warning. The shooting was caught on tape. Nevertheless, the officer was not prosecuted.
Obama’s Justice Department investigated these cases, but federal charges rarely are brought. This was a matter left to state prosecutors, who rarely charge police officers for fatal shootings. Support from police unions allows state prosecutors to keep their jobs and also achieve higher office.
Meanwhile, the Supreme Court moved on civil rights in the opposite direction of Obama. The court decided that important parts of the Voting Rights Act were no longer needed. In the case of Shelby County v. Holder, the Supreme Court in 2013 decided by a five-to-four-justice margin that the Voting Rights Act had achieved its purpose. The federal government no longer would oversee the fifteen states with histories of voting rights violations: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Florida, California, Michigan, New York, North Carolina, and South Dakota. These states were essentially now back on their own, trusted to uphold the voting rights of all citizens.
With federal oversight disbanded, voting rights of African Americans and other minorities in some states is once again under attack.
One instrument of attack has been the campaign against voter fraud. Conventional voter fraud (people who vote when or where they are not supposed to vote, or people who vote twice) historically posed a very real threat to the rule of law, but today is very rare. At the same time unjustified fears—or fake news—of voter fraud are used to impose voting restrictions that disproportionately affect minority voters.
In sum, a solution to one problem (voter fraud) has been used to exacerbate another problem by denying some African Americans and other minorities the right to vote.
In 2012, of the 146 million registered voters who voted over the past twelve years, there were 2,068 cases of alleged voter fraud. Of those, only ten were cases of voter impersonation. Before the 2016 presidential election, politicians from Arizona, Georgia, Texas, Ohio, and Kansas expressed concerns about voter fraud. According to the Washington Post, attorneys general in those states prosecuted thirty-eight cases of voter fraud. A third of those involved nonvoters—election officials or volunteers. None was for voter impersonation.
Said Jennifer Clark of the Brennan Center for Justice, “[Voter fraud] is not a significant concern.”
Of the 5.6 million ballots cast in the 2016 presidential election, investigators found exactly fifty-two cases of voter fraud.
The evidence clearly indicates that voter fraud had largely disappeared by the late twentieth century. The days of dead people voting and ballot-box stuffing are gone.
If we stick to paper ballots, voter fraud should not be an issue—with computerized voting machines, and the Russians playing their usual tricks, all bets are off. But computerized voting fraud is not the fraud that voter ID laws are aimed at. And these laws disproportionately discourage minority voters from coming to the polls.
On the very day of the Shelby v. Holder ruling, Texas announced it was implementing a new, strict voter ID law. To vote you had to have an approved picture ID.
The Voting Rights Act had been an impediment to voter ID laws because they disproportionately discriminated against minorities, some of whom didn’t have driver’s licenses, the usual voter ID. Estimates suggested as many as 800,000 voters in Texas lacked an ID. North Carolina passed a similar bill, and so did Alabama, where legislators also passed a law requiring individuals to prove their citizenship.
Mississippi passed a law saying voters had to have driver’s licenses. But thirteen counties lacked a motor vehicle bureau office.
Without Section 5 of the Voting Rights Act, it is difficult for the federal government to deter these and other voting law changes. Laws more easily can be passed to prevent a disproportionate number of blacks and Latinos from voting in the fifteen states where the right to vote was once protected by the federal government.
The 2016 Republican platform urged states to require proof of citizenship and photo IDs because “voting procedures may be open to abuse.”
According to the Brennan Center for Justice, as of January 2018, law-makers in eight states had introduced sixteen bills making it harder to vote, and there are thirty-five restrictive bills from fourteen states held over from the year before.
Kris Kobach, who later became chairman of President Trump’s now disbanded “Election Integrity Commission,” had a long history of defying the law to suppress the black and Latino vote. Before Kobach became the secretary of state of Kansas, a person needed only to swear an oath of citizenship to vote. In 2013, Kobach drafted a law that was passed by the Kansas legislature mandating citizenship documents such as a passport or birth certificate for voter registrations.
Large numbers of citizens, primarily African Americans and Hispanics, had neither, and they didn’t have money to acquire one. By December 2015, more than thirty thousand Kansas citizens were disenfranchised.
In May 2016, Kansas federal judge Julie Robinson, who was appointed by George W. Bush, ruled that Kobach’s law was illegal.
When Judge Robinson ordered Kobach to register those voters, he refused. Instead, he sent them notices that they could not vote unless they provided citizenship papers.
The day before Kobach was ordered to appear in front of the court on a contempt citation, finally he agreed to comply. He promised the judge he would send postcard notifications telling people that they could vote.
He never sent the postcards. When called on it by the ACLU, Kobach’s office said he was under no obligation to send the postcards.
The judge had also ordered him to correct the voting requirements published on the secretary of state’s website. He refused to do that as well.
During a contempt hearing in April 2018, Robinson dismissed Kobach’s claim that he couldn’t force election officials in 105 counties to send out the postcards.
Judge Robinson held Kobach in contempt of court.
Kobach fought back. Arrogantly predicting that he would win his appeal with the US Court of Appeals Tenth Circuit to defend his “proof of citizenship” law, Kobach has announced his candidacy for governor of the state of Kansas in 2020.
In January 2018, the Supreme Court ruled in the case of Husted v. A. Philip Randolph Institute that a citizen in Ohio who didn’t vote or answer mail could be disenfranchised. The Ohio legislature passed a bill saying if a citizen does not vote in two elections, doesn’t return a prepaid notice, and doesn’t update their registration over the next four years, they will be stricken from the rolls.
A man named Larry Harmon sued. He hadn’t moved. He just chose not to vote in 2009 and 2010. When he showed up to vote in 2015, he was told his registration had been cancelled. He had received no notice of cancellation.
In September 2016 a federal appeals court ruled that this violated the National Voter Registration Act. It said a person can’t be taken off the rolls just because they didn’t vote.
Ohio attorney general Mike DeWine appealed the ruling to the US Supreme Court, arguing that the state has to be allowed to remove ineligible voters from the rolls. The Supreme Court agreed with him by a five to four vote, with the conservative justices being in the majority.
Said attorney Stuart Naifeh, “Ohio’s process targets lower income voters and those of color and penalizes voters who may already face obstacles in exercising the right to vote. It disproportionately harms the most vulnerable voters.”
The state-by-state assault on voting rights continues.
With a hostile Congress and Supreme Court, President Obama had an uphill battle to advance civil rights. His most vicious enemy, however, was the right-wing media, whose commentators were often racist.
Right wingers were outraged that an African American might be in the White House. His very existence infuriated them, and in an attempt to delegitimize his presidency, they mounted a campaign to argue that Obama was born in Kenya, not in the United States, and could not hold the presidency under the Constitution. This was the so-called “birther movement.” Only a few years into the Obama presidency, the birther movement found a new champion, the same New York real estate developer who had viciously fought the Nixon Justice Department’s lawsuit against him for housing discrimination: Donald J. Trump.
Long before he announced his run for the presidency, Donald Trump would attend rallies, where his battle cry was, “Show us your birth certificate.”
We would end our pre-Trump story about racism and civil rights here, but it is appropriate to report one more development in the Supreme Court concerning voting rights that extends into the Trump administration.
The Supreme Court in 2019, with two new Trump-appointed justices, Gorsuch and Kavanaugh, abdicated responsibility for judicial oversight in gerrymandering cases. Federal courts have barred at least some explicitly racially motivated gerrymandering. But political operatives quickly replaced it with politically motivated gerrymandering. Gerrymandering is accomplished when congressional district maps are drawn in such a way as to concentrate one party’s voters in a few districts, leaving the majority of a state’s congressional districts to be controlled by the other party. Whichever political party controls the state legislature controls the gerrymandering game and gets to choose a disproportionate share of the state’s delegation in the US House of Representatives. A similar game can be played to draw legislative district maps in a manner that perpetuates a party’s control over the state legislature.
And when racial minorities are far more likely to support one political party than the other, politically motivated gerrymandering often is de facto racial gerrymandering.
This is happening as overwhelming numbers of African American voters support Democrats. Hispanic voters, particularly after the rise of Donald Trump, have also preferred the Democratic Party.
Would a Supreme Court that was willing to intervene in racially motivated gerrymandering also rule that politically motivated gerrymandering in at least some cases was unconstitutional?
The answer the Supreme Court gave in Rucho v. Common Cause and Lamone v. Benisek, decided on June 27, 2019, by a five to four vote was no. The federal courts could not interfere. Even though extreme partisan gerrymandering could be unconstitutional, this was still a nonjusticiable “political question,” and it was up to state legislatures to rule on it. (Strange, since state legislatures are creating the gerrymandering problem to begin with.) Alternatively, Congress under the elections clause of the Constitution could solve the problem. (House members whose own seats may be in gerrymandered districts have shown no interest in doing this.)
Without the supervision of the courts, the rule of law is undermined by political operatives armed with sophisticated computer models that carve up states into oddly contorted districts so a political party can win the majority of a state’s congressional delegation while getting less than 50 percent of the vote in the state. School districts drawn this way to avoid Brown v. Board would likely run into trouble with the federal courts, but state legislatures can gerrymander legislative districts with impunity, provided they say that the motivation is politics, not race.